Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.



September 1, 1987


Hamilton County. HONORABLE JOSEPH F. DIRISIO, JUDGE, Post-Conviction.

Permission to Appeal Denied November 30, 1987

John K. Byers, Judge, Joe D. Duncan, Judge, Allen R. Cornelius, Jr., Judge, Concur.

The opinion of the court was delivered by: Byers

John K. Byers, Judge

The trial court dismissed the petitioner's petition for post-conviction relief, which alleged he was denied the effective assistance of counsel in his convicting trial. The petitioner appeals from that judgment.

The judgment is affirmed.

The petitioner was convicted of first degree murder, and in a bifurcated proceeding the jury fixed the death penalty. The petitioner offered no evidence of mitigating factors in the sentencing phase; nor did he testify in that portion of the trial.

The petitioner complains that his trial attorney failed to develop proof of the mental deficiencies which his client suffered and failed to introduce medical evidence of his mental condition as a defense to the charge or in mitigation of the punishment.

To support this thesis, the petitioner, at the hearing on his petition, offered the testimony of alleged expert witnesses and members of his own family.

Concerning the two witnesses, one was not expert, and the other, if at all, was not qualified to give an opinion as an expert in this case.

One of these witnesses, an ordained minister, with no legal training and limited experience, testified it was his opinion the attorney should have used those portions of the medical reports which were beneficial to the petitioner. He was of the view the attorney is required to "pull out" the beneficial part of the record and whether these were used in their totality was up to the attorney. The record shows this witness was unaware that once the records are introduced the entire record may be explored by the state.

This was particularly pertinent in this case because the record shows that petitioner's counsel could not show the petitioner was insane and all the medical evidence would show the petitioner was an aggressive, anti-social person who had previously committed serious violent acts toward others.

The attorney who attacked the competency of the original counsel had not read the transcript of the trial and was unaware of the contends of the medical records. He had never discussed the case with the original trial attorney.

Both of these alleged experts testified they were opposed to the death penalty. In this case there is no evidence to support their opinions that counsel was incompetent, and their testimony was properly discounted by the trial Judge.

The trial Judge found that the original attorney met and conferred sufficiently with members of the petitioner's family to determine what mitigating factors might be present. The record supports this finding, and we do not grant relief on this allegation against counsel.

The original trial attorney testified he did not attempt to use the medical evidence about the petitioner because none of it would support a defense to the crime and all of it would show the negative past conduct of the petitioner. In his view the evidence would virtually compel the return of a sentence of death.

Some of this evidence, a medical report of a head injury suffered by petitioner at the age of two, was not available to counsel at the time of trial. Although he was told of the injury and gave the psychological examiners this information, counsel was unable to learn in what city or state the injury had been treated. Nothing in any of the medical or psychological reports and nothing introduced at the present hearing links this injury with the petitioner's behavioral difficulties. Trial counsel did not neglect this line of inquiry, and the petitioner has not shown that it would have produced any favorable evidence.

The petitioner has failed to carry his burden of showing his trial attorney performed below professional standards or of casting any doubt on the outcome of his trial, as he must do to upset a presumptively valid conviction. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Further, the evidence shows the attorney made a sound tactical decision in electing not to use the records of the petitioner's mental history. See Darden v. Wainwright, U.S. , 106 S.Ct. 2464, L.Ed.2d (1986). His judgment was based upon an expert opinion obtained prior to the trial that the petitioner was not insane. the decision by counsel is supported by the evidence and gives no basis for overturning the judgment originally entered in this case.

Joe D. Duncan, Judge, Allen R. Cornelius, Jr., Judge, concur.


© 1997 VersusLaw Inc.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.